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ELCDismissedNot stated in the excerpt (Environment & Land Case; underlying suit referenced as Environment & Land Case 79 of 2010 in cited authority only)

Lowoton & another v Lorogoi & 4 others; Kamario & 3 others (Interested Parties) (Environment and Land Case 176 of 2016) [2025] KEELC 3175 (KLR)

Environment and Land Court
25 March 2025
2,279 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to strike out illegible documents from evidence, confirming that such defects affect how much weight documents carry, not whether they can be used.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court (F. Nyagaka, J) determined a notice of motion dated 31st January 2024 brought by the Plaintiffs after the close of evidence and before delivery of judgment. The Plaintiffs sought expungement of the 1st Interested Party's list of documents on grounds of illegibility and questionable authenticity, invoking Sections 1A, 3, 3A and 63(e) of the Civil Procedure Act and Order 51 Rule 2 of the Civil Procedure Rules. No party responded or filed submissions. The court framed a single issue: whether the application was merited. Analysing the law of documentary evidence, the court set out the four stages of production and proof of documents (filing, production, admission, and proof of contents) and held that the impugned documents - a 2009 KANU letter and a 2012 receipt, photocopies certified by an advocate - had already been admitted, by consent, and thus passed to the stage of proof of contents. Illegibility and irregular certification affect the weight and sufficiency of the evidence, not its admissibility, and are not grounds for expungement. The court further held that KANU is a private entity, so its documents are private documents outside the certified-copy regime of Section 80 of the Evidence Act; private documents should be certified only by their maker or the issuing office. The application was dismissed with no order as to costs, and the court proceeded to complete preparation of the judgment.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.whether the application is merited

Key legal issues

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01

Whether illegible photocopies certified by an advocate other than the maker should be expunged from the record

Holding

The application fails; illegibility and irregular certification affect the weight and sufficiency of the documents, not their admissibility, and do not justify expungement.

Reasoning

The court set out four stages of documentary proof: filing, production at hearing, admission as an exhibit, and proof of contents. Once admitted (here by consent, subject to cross-examination), challenges go to weight, not expungement. Certification of private documents by a non-maker is ineffective, but that defect also bears on weight. Since KANU documents are private, Section 80 certification rules do not apply.

p. 5
02

Whether the impugned documents are public or private documents

Holding

They are private documents because KANU, though a political party, is a private entity limited to members.

Reasoning

The nature of a document depends on its maker. KANU is a private entity; a document it issued, while in its custody or given to a private individual, remains private. Accordingly the certified-copy regime in Section 80 of the Evidence Act for public documents is inapplicable, and certification of private documents is not contemplated by that provision.

p. 4

Legal principles established

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  • A document already admitted in evidence cannot be expunged for mere illegibility; illegibility goes only to the weight and sufficiency of proof of its contents.
  • KANU is a private entity; documents issued by it are private documents not subject to the certification regime for public documents under Section 80 of the Evidence Act.
  • A private document ought to be certified only by its maker or the office/institution that made it; certification by a stranger is of no effect but is not a ground for expungement.

Court orders

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  1. 1.The application dated 31st January, 2024 is dismissed with no order as to costs
  2. 2.The Court proceeds to conclude preparation of the judgment

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Sections 1A, 3, 3A and 63(e) of the Civil Procedure Act and Order 51 Rule 2 of the Civil Procedure Rules

Relief refused

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Expungement of the 1st Interested Party's list of documents (Exhibits 2(a) and 2(b))

Illegibility goes to weight and proof of contents, not admissibility; admitted by consent and subject to cross-examination

p. 5

Costs

No order as to costs

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The evidence cannot be expunged by mere illegibility. The weight to be attached to the document is what is in issue. Thus, the contents can only be expressed as being insuficient for proof.
p. 5Effect of illegibility on admitted documentary evidence
A document ought to be certified by only the maker or by the ofice/ institution that made it as a true copy of the original.
p. 5Certification of private documents
I find that the application dated 31st January, 2024 is without merit. It is therefore dismissed with no order as to costs. This Court proceeds to conclude the preparation of the judgment accordingly.
p. 5Final orders

Issues in the judgment

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minor

The judgment's own case number and station are not stated in the excerpt; only the date of delivery appears.

minor

The citationTreatment value 'referred to' for Lwangu v Ndote [2021] is not a standard controlled value but best reflects the court's use of that ruling as internal reference within the Sofie Feis Caroline Lwangu quote.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Lowoton & another v Lorogoi & 4 others; Kamario & 3 others (Interested Parties) (Environment and Land Case 176 of 2016) [2025] KEELC 3175 (KLR)", Case Analysis (2025). Not stated in the excerpt (Environment & Land Case; underlying suit referenced as Environment & Land Case 79 of 2010 in cited authority only). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3175/eng@2025-03-25

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.